Players and Owners Hit the Court — For Litigation

Justice Oliver Wendell Holmes Jr. once famously warned a litigant “This is a court of law, young man, not a court of justice.” The wisdom of the NBA Players Association’s decision Monday to dissolve the union and throw the NBA headfirst into the courts depends on the players’ ultimate goals. As a negotiating strategy to gain some — any — leverage on the owners, it makes sense and is long overdue. As an attempt to bring the lockout to a just conclusion through judicial intervention, it will likely disappoint. Savvy strategy or foolish flailing? That ultimately rests, as it did pre-dissolution, on whether the more moderate owners can wrestle control away from the NBA’s small-market hard-liners.

Before diving into the always entertaining world of litigation posturing, here’s the broad-strokes version of what happened Monday: the NBA Players Association voluntarily terminated its union status through a disclaimer of interest, to free its members immediately to file antitrust suits (whether individually or as a class) against the NBA for engaging in anticompetitive behavior (locking them out, refusing to negotiate in good faith). The disclaimer brings the union to the same end point as a decertification vote, but does so without the voting procedure involved in decertification (it’s also easier to undo). Because the disclaimer was done based on a representative rather than actual vote, it is more open to attack by the NBA as a bad faith negotiation tactic (although those arguments are likely to be little more than formalistic static used to drown out the players’ substantive points). The players’ lawyered up with a big name litigator (David Boies) and papers should be filed by the end of the week.

The move into the courts benefits the players in a few immediate ways:

First and foremost, it rejects David Stern’s “take-it-or-leave-it” negotiation strategy. Stern can issue all the ultimatums he wants, but the players aren’t obligated to cave to them. The players’ lawsuit will recontextualize the dispute not in terms of the back-and-forth of the past four months, but in the bigger picture of the NBA’s economics. This perspective benefits the players, who have done nothing but give ground to the owners — arguably far more ground than the owners claimed they initially need to be economically viable.

It forces a true “best, final offer” from the owners. There are some practical pieces that need to fall into place before filing suit (like sorting out name plaintiffs), but the groundwork and papers for this suit were likely fleshed out far before the disclaimer went up for vote this morning. The real benefit in delaying the actual filing for a few days is to give the more moderate owners a chance to push for a better final offer. Right now, what the owners presented this weekend as their take-it-or-leave-it deal will be memorialized as the owners’ final offer in the complaint. It’ll be one of the things the court looks at to determine whether the negotiations have been in good faith. If the owners want to shore up their position prior to litigation (or attempt to prevent litigation all together), they’ll likely float an additional proposal for the players to consider. If the concessions are significant, it could be enough to get a deal done.

It creates the threat of accountability. Stern and Silver have been shameless over the past months in issuing threat after threat in an attempt to strong-arm the players into a deal. They’ve delivered on very few of them, but the practice has cast an abusive tone over the entire negotiation process. Once the lawsuit gets filed, everything Stern and Silver say and do as part of formal negotiations can be put in front of the court. There may be heated settlement discussions, but the days of the League arrogantly and dismissively making public statements about the pain it’ll inflict if there’s no deal are likely over.

But despite these immediate advantages for the players, it’s hard to see how litigation fundamentally changes the negotiations in the long-run. Antitrust suits are famously complex, hinge on a variety of expert economic testimony and take years to work their way through the system. If the players are waiting for the courts to save them, they’ll be waiting for longer than just this season. There’s also the messy remedy question — what exactly the players want the court to do. Due to preemption issues, the players likely won’t ask for an injunction (an order that the owners be forced to do X). They can ask for damages, but compensation for money they lost due to anticompetitive behavior doesn’t directly put the League back together again. They could get creative with a few other remedies, but with greater creativity comes greater risk and delay. Any favorable order could be appealed, adding years more to the process. In short, litigation is a tactic, not a solution. Monday’s move changed the vocabulary of the dispute, but not the underlying forces or issues.

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For those with a passing or professional interest in litigation, the next steps are filled with interesting questions. Do the players go in as a single class, a group of subclasses or as multiple suits? Are there competing groups of players that opt out? Do certain agents emerge as viable challenges to Hunter during the process? Do the players forum shop for a speedy or substantively favorable jurisdiction or do they settle for New York? What PR bombshells get dropped in the complaint in the still-raging war of words between the two sides? But as fascinating and fun as some of us may find these questions, it’s not the court most NBA fans want to watch. The clock is still counting down on the 2011-12 NBA season.

Let us go back to Curry bashing and Monta trading For me, free agency is going to be interesting.

JT

Warriors!!!!! Now we just need to swap Ellis for Iggy or JSmith… And let’s get it on!!

nelliesbiggestfan

TW sure does like to pick his spots based on his own biases. He writes about an isolated pepper spray attack from a black friday shopper and claims that this somehow reflects our society. It doesn’t.

But TW says nothing about the REPEATED violence committed by his political brothers the OWS protesters.

BTW , more emails have been released that expose the complete lack of science in the pro global warming climate science community. It has become a political cause more than a scientific investigation.

The Oracle

We have basketball, hopefully.

What are the terms of the deal?

RRKore

NBF, you are not well.

The Oracle

If anything the OWS protestors have been the victims of occassional police violence. Like the campus police pepper spraying students sitting on the ground who presented zero aggressiveness or threat to the campus police goons in riot gear. All the protestors did after getting sprayed was shout “shame on you” to the police idiots. Ever notice campus pollice are the guys who can’t get into the real police departments and can’t wait to get into some “action.”

The protests have been remarkably non violent. But leave it to NBF to get it exactly backwards. Typical.

But I imagine if the 1% continues to control our Congress, our courts, our system, and pevert the captilistic system through monopolies and oligopolies, then at some point there will be a true revolution that goes beyond non violent protest. Hopefully it won’t come to that, but I know many people are tired of a greedy ruling class. We might as well have kings and nobles the way the utlra wealthy run this country to their own greedy benefit.

On a happier note, I guess since the W’s are moving on to a new season, the political talk will die down. Nobody needs to mention Don Nelson. I guess that means NBF willl be moving along. Yeah, right.

sartre

Not a happy Spanish League for Reggie:

“One of the most exciting signings of Caja Laboral over the summer, Reggie Williams (196-G/F-86, agency: Interperformances, college: VMI), says good-bye to the Endesa League and the Turkish Airlines Euroleague. As reported by the Spanish club today, both parts have reached an agreement to part ways. Williams, who got injured twice this season, found a very few opportunities to prove himself, and averaged just 4 points in 11 minutes per game in the domestic competition.”

I yi yiyi yi

“Dancing days are here again” Yes…. Basketball instead of politics. JT you are right Monta for Iggy do it. or time to pick up Nene. oh and as usual Al oha is correct time to show a bit of disdain with these Billionaires and Millionaires Wizzywig.com has most of the games (got to see the 9ers get there but* kicked) boycott the revenues for greedy Owners.

that’s about a dozen posts that you have complained about monopolies but I’m still waiting for an example of one in our economy.

But you are right about one thing , if the political talk dies down and no one wants to talk about nellie, I will be moving on. In fact I’ll move on right now and see what happens. Have a great season.

Xiao Fedorka

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I yi yiyi yi

nelliesbiggestfan says:
November 26th, 2011 at 4:12 pm

oracle

that’s about a dozen posts that you have complained about monopolies but I’m still waiting for an example of one in our economy.

But you are right about one thing , if the political talk dies down and no one wants to talk about nellie, I will be moving on. In fact I’ll move on right now and see what happens. Have a great season.

Liar

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